Musings and Snippets from a recently retired JP. I served for 31 years, mostly in west London. I was Chairman of my Bench for some years, and a member of the National Bench Chairmen's Forum All cases are based on real ones, but anonymised and composited. All opinions are those of one or more individuals. JPs swear to enforce the law of the land, whether or not they approve of it. Nothing on here constitutes legal advice.

Thursday, May 31, 2012

Integrity

I was privy last year to an email exchange about a case that stretched out over three days. One comment sticks in my mind (and I paraphrase)

"After all that, we hated having to announce the verdict that we did, as we were so disgusted by what had happened"

This Bench did its sworn duty to acquit in a case where they were certain that the defendant had committed the crime, but where the evidence (presumably) had a fatal flaw.

That's what you get from an impartial bench that knows its duty, and that's why I defend the system that allows them to do it.

I'm confused. If the bench believed the defendant to be guilty, it would appear that the prosecution had proved their case beyond all reasonable doubt. How could the bench be sure of guilt if there was insufficient evidence to prove the case? All this backslapping about doing your duty seems to be misplaced if the wrong verdict has been given.

You can't have it both ways (pardon the pun). If you heard enough to persuade you of guilt, then it is guilty. If the evidence is insufficient then you have no basis to assume guilt, i.e., insufficiency to convict. Guilt is an intangible legal variable unrelated to whether or not he actually hit the bloke on the nose.

The fact is that most if not all Magistrates will have sat on trials (and guilty pleas to lesser offences than appear appropriate) and been satisfied "on the balance of probabilities" of guilt. But that is not the test in criminal matters - which is generally defined as "beyond reasonable doubt" - or put another way "so that you can be sure". These are very different tests. We may often suspect guilt and even be satisfied on the basis of the standard of lower test - but that is not enough. This can be frustrating but we have to apply the higher standard of test - it's the law!

The fact is that most if not all Magistrates will have sat on trials (and guilty pleas to lesser offences than appear appropriate) and been satisfied "on the balance of probabilities" of guilt. But that is not the test in criminal matters - which is generally defined as "beyond reasonable doubt" - or put another way "so that you can be sure". These are very different tests. We may often suspect guilt and even be satisfied on the basis of the standard of lower test - but that is not enough. This can be frustrating but we have to apply the higher standard of test - it's the law!

Bystander says that [the bench was] certain that the defendant had committed the crime.

Certainty goes well beyond "reasonable doubt" and so the defendant should have been convicted. The fact that she was not convicted in such circumstances would seem to indicate something wrong in Bystander's Court.

Or perhaps Bystander has just selected an incorrect choice of words to describe the bench's feeling about this particular case.

It doesn't take much imagination to think of a case where bad things happened, and the most likely suspect is, in fact, in front of the court, but that there is insufficient actual evidence to convict. Hibbo, I'm sure, would much rather that the courts go with the "he's here, so he's guilty", but I think we are all actually safer if the government's powers are limited, given that they are so much larger than any individual defendant.

If Watcher's interpretation is right, then I think we all understand that possibly 999 out of 1000 defendants acquitted are guilty. Magistrates, and Juries in particular, take reasonable doubt to levels beyond the understanding of many.So we understand that magistrates acquit many guilty people whilst swearing to do their duty. Is there any more to it than that? Or is this post just about pomposity and self importance?

"Magistrates, and Juries in particular, take reasonable doubt to levels beyond the understanding of many." I don't man to be picky but, do you actual evidence of this? Since deliberations in the retiring room and in the jury room are wholly confidential, I would suggest (on the balance of probabilities, of course) that you are simply surmising.

The CPS won't attempt to prosecute anything unless it is a 'stone bonker.' Thousands of cases which should be put before the courts do not even get there because it will adversely affect the CPS targets. Considering this, it is unbelievable that so many defendants are still acquitted.

What proportion do the CPS discontinue on these grounds?What proportion of trials following a not guilty plea end in acquittal?For each question, it would be helpful if you could give us separate figures for the magistrates' courts and the crown courts.

CPS discontinuance is irrelevant. The CPS don't allow the cases to be charged in the first place.The police now understand very well when it is or isn't worth bothering to ask the CPS to charge a case.Let me give you one example. When the police pursue a stolen vehicle, the whole focus will be on the driver. Passengers will be arrested if possible but they will almost never be charged with the offence of being carried in a stolen vehicle. Passengers give a standard response which is that they were picked up by the driver and they had no idea the car was stolen. You can show that the driver was a close friend of theirs. You can show that the driver is an unemployed drug addict with no means to own or run a car. Etc. It matters not. The CPS will not charge unless there is an admission of guilt.Occasionally, cases come up that the police hope the CPS will charge. For example, a car was broken into, pushed down the road, the ignition tampered with and attempts made to start it. For some reason the offender could not start it. The police fingerprinted the vehicle and a suspects thumb print waqs found on the rear view mirror. The suspect has previous for stealing cars. He was arrested and in interview claimed that he was walking down the road and it began raining. He found a car with the passenger door unlocked and got in to keep dry. He checked his face in the rear view mirror as he had acne. He did not live in the area and could nor account for being there other than going for a walk. The CPS decided this would not be charged as he was likely to be acquitted, the case not provable beyond reasonable doubt. The whole system is a farce.Not guilty pleas and acquitals is probably on the Home Office site. I will look at it when I get a minute.

Your second sentence is plain wrong. I have an offspring who is a senior police officer and I prefer that person's experience to your bald assertion. Your final sentence, says it all. Perhaps until you "get a minute', you can spare us your rants.

Tell your offspring to get out from behind their desk, ask where the custody centre is and make their way there. If they spend a bit of time in custody and listening to CPS consultations they might wake up to the reality of the situation.

I am a custody skipper and can confirm from personal experiance that Brontosaurus's descriptions above bear close resemblance to the cases I see regularly.

Another example: A member of the public calls police as they have seen a man breaking into a house. The police attend, discover the premises insecure and find the man hiding in a wardrobe. He attempts to flee the scene and is forcibly detained. In interview he states that he had no intention of stealing and had just gone in looking for somewhere to urinate. He had multiple pre cons for burglary and other matters including dishonesty.

The CPS refused the charge because they felt that there was no proof of his intent to steal at the point of entry.

This is the reason store detectives are trained to let the suspect out of the shop before detaining them even though they're doing stuff like stuffing things down their trousers...

Oh for the days - and I am not being sarcastic - when the police did their own prosecuting and thus had the motivation to see matters through to a (hopefully) satisfactory conclusion. Those days were before my time, but I still think they were preferable to a budget-driven CPS. My main frustration was hearing the facts of what was clearly S.47, but were offered in response to an accepted guilty to S.39, or a bindover put forward as a suitable disposal for getting drunk and beating up the wife/girlfriend.

Now I personally think he should resign; but not because I believe him to be incapable of simultaneously having an opinion and also being impartial, which seems to be the main charge he is being accused of.

We do it on the Bench all of the time - so it shouldn't be beyond the capabilities of a cabinet minister.

I think you are over-estimating politicians. Unlike JPs, politicians are often selected and promoted when they can be relied upon to apply pre-conceived notions and/or political party orthodoxy to any new event that might present itself. 'Safe pair of hands' is how they describe that among themselves.

It will be interesting to see whether those who judge misleading of Parliament agree with the Prime Minister's surprisingly rapid verdict post-Leveson. Leveson specifically excluded considering the that was a planned delaying tactic all along, thus giving the PM cover for another foregone conclusion.

There is a big difference between a JP and a politician (and, I was thinking this morning, a big difference between an elected President and a constitutional monarch). The JP is discharging a voluntarily assumed (unlike the monarch, yes, but still) public duty without remuneration which includes conscious impartiality as a central requirement. The politician is an ambitious and aspirational individual who has climbed a greasy pole using the usual tricks and ploys of his or her trade, including cultivating close and mutually helpful ties with a variety of media outlets. These ties similarly serve his or her party, loyalty to which benefits any politician. Impartiality is, simply, not central to a politician's mentality. And yes, as you clarify below, the fact that Leveson would not be considering the ministerial code made Cameron's speedy exoneration of his minister a foregone conclusion.

If I chair a bench that acquits because of a technical defect in the Crown's case (and in my experience this is rare, and getting rarer as the CPS improves its performance) I make sure that the reasons for our decisions are explained fully to witnesses/ victims. If they are still in the courthouse,they are brought back into court so that I can explain the reason for our decision myself. And this includes police witnesses. I think that they deserve that.

It must be difficult for those who have not experienced it to understand how you can be convinced someone is guilty, but have to acquit because the Crown have failed to prove their case beyond reasonable doubt. An example may help: Crown's case is that two lads stole a blue Corsa; they establish that the Corsa has been stolen, and they establish that police apprehended two lads in a blue Corsa with a broken window. They close their case. Defence then points out they have failed at any point to prove it is the same car, as there is more than one blue Corsa in the world. Obviously the police witness should have given the registration of the car he stopped but he failed to do so. The prosecution cannot go back and fill in holes in their case when the defence point them out, so an inevitable finding of no case to answer. CPS left confounded, Bench frustrated, blood-and-guts LA grinding her teeth, defendants bemused and defence solicitor looking pleased with himself.

Obviously the CPS should have ASKED for the registration while their witness was under oath?

"The prosecution cannot go back and fill in holes in their case when the defence point them out"

In a nutshell this is why the public have lost faith in the courts, it's all a game to you. If the police genuinely don't have evidence that it was that particular Corsa then no case to answer but that's not what your example shows. Games played by the courts for their own amusement!

...Leveson specifically excluded considering the ministerial code (MC). Forgive my skepticism, but I suspect that the strange claim that The Leveson Inquiry was nonetheless the appropriate venue for comparing Hunt's behaviour to the MC was a planned delaying tactic all along, thus giving the PM cover for another foregone conclusion.

I have had the case where a witness has not turned up so the crown has failed to prove its case. D leaves the dock, fist clenched and rasied shouting "yes, result - I'll kill the bitch next time". Do I think he was guilty of the original matter - well, you decide.

The chances of a technicality arising should be few and far between. The Criminal Procedure Rules have introduced robust case management which require both the defence and the prosecution to identify the issues in the case. If they subsequently attempt to raise an issue that was not previously identified when the case was set down for trial the court can and should refuse leave for it to be pursued. The higher courts have consistently said that justice is not a game. The court has the power to adjourn a case to allow a technicality to be rectified. In short a properly managed case should not be de railed by unexpected issues. The more this happens hopefully the greater the confidence of the public in the system.

This is all well and good, in theory. In actual practice, granting the prosecution adjournements to rectify technicalities, or any special indulgence in the name of public interest, tends to spoil them, so that next time they'll be even less keen on being ready at the appointed time;the result will hardly be flattering to the system as a whole .In Italy, where the prosecution regularly benefits from such staples from the bench, it's become custumary for trials to have to be adjourned because the prosecution cannot get some part or other of their act together on time.We have trials lasting over years, sometimes decades, often ending in a null result which leaves everybody wronged: victims and accuseds. Perhaps justice is not a game, but if you want it to work , you'd better pretend it is.

Bronto, if I may so abbreviate you, let me tell you about a very common situation?

D.v. allegation and the complainant does not show up. Her mobile is off or going to voicemail. Police have nobody to spare to knock on the door – and last time she was in contact she said she would be there.

CPS ask to read her statement on the ground that she is in fear. Defence object that there is no evidence to support that allegation. Defence counsel points out that the statement ends with the usual words “I am willing to attend court and give evidence” – so she was not in fear then, nor it appears yesterday or the day before when she told the o.i.c. that she would show.

Defendant willing to swear that he has not contacted her or asked anyone else to. In my neck of the woods it is quite possible that they are cousins.

Your guts tell you that a friend or a relation has upbraided her for having complained in the first place and warned her to stay away “for the good of the family”, and that while defence counsel does not know that the Defendant probably does. But your guts are not made for thinking with; they have another task, and they are as good at thinking as your brains are at breaking down food into sustenance. Your brains tell you that counsel is right. CPS are arguing in a circle. “She’s not here because she is in fear and she must be in fear because she is not here”.

It won’t do. You must dismiss the application and CPS will offer no evidence.

I appreciate that in some cases magistrates may have to dismiss cases, andrewofgg. In the circumstances you outline it will be the police that are blamed for lack of action when the victim is seriously hurt, or worse. But we musn't make the lady a victim twice over!

The fact is the whole justice system is watered down so it is totally ineffective. The CPS won't charge unless they feel there is a 99.9% chance of a conviction. They even invent possible defences, that haven't been put forward, as an excuse not to charge. This is why I say I am amazed that Magistrates find grounds to acquit in some cases. When the CPS do agree to charge, the offences are watered down/plea bargained at the time of charge and/or hearing in order to gain a guilty plea. For example, offenders that might have been charged with S20 or 47 end up with a common assault or bindover. When defendants are convicted, the ridiculous sentencing guidelines ensure there is no deterrent or effective sentence for persistent offenders. When offenders breach community penalties, ASBO's Etc. When they fail to pay fines, there are no consequences. They walk in and out of the courts with impunity.We have a growing population of persistent offenders who see that crime pays very well and who hold the whole justice system in complete contempt as they see it for the sham it is. These persistent offenders will continue to victimise more and more people until the ineffective mess we currently have becomes fit for purpose.

The witness/victim is dragged in on a summons and either a) refuses to say anything or b) contradicts everything in her statement. Outcome CPS has no evidence to offer, case dismissed, but possibly witness charged with contempt and taken to the cells until she's ready to apologise and purge her contempt. So now as well as being beaten up, she's been locked up by the system. Can't quite see where the justice is in all that.Of course, it would be so much easier if we could act on what we all suspect but can't prove and lock up the defendant for looking as if he did it.

I also agree that it would be wrong to treat the complainant harshly; but the point I make is that in the circumstances I have suggested dismissing the charge is the right thing to do because it respects the rights of the defendant; which are to be treated as innocent unless and until proved guilty beyond reasonable doubt by lawfully admissible evidence. And if none is forthcoming, to be acquitted.

What The Papers Said

40 Bloggers That Really Count (Times)There are 30,000 or so unpaid magistrates across England and Wales. For five years, one of them has anonymously detailed the cut and thrust of the job, providing a grimly funny insight into Britain’s sinful underbelly with the same feel and tone as a Hogarth or Dickens.